Republic v Deputy County Commissioner, Kilungu & 3 others; Kiteng’e

2. That an order of Prohibition do issue directed to the 2nd Respondent from eecting and/or implementing the decision of the 1st Respondent in an Appeal to the Minister Case No. 235 of 2015 delivered on the 19th day of May, 2022 over land Parcel No. 1038 of Wautu Adjudication Section. 3. Costs of this suit and incidentals to the application be provided. 4. Such further and other reliefs that this Honourable Court may deem just and expedient to grant. 3. The application is supported by the statutory statement dated 31st August, 2022 and the verifying adavit of Susan Muthei Kiteng’e sworn on even date. The deponent averred that she is aggrieved by the decision of 1st Respondent that was delivered o 19th May, 2022 over land Parcel No. 1038 Wautu Adjudication Section. It is her case that there existed procedural aws during the hearing of the Appeal to the Minister and the eventual decision. She insisted that the 1st Respondent ended up awarding the Applicant land portion less than what she currently occupies. 4. The deponent contended that the 1st Respondent’s decision is ultra vires as it stated that the Ex-parte Applicant’s case is marred with contradictions yet the decision did not indicate any instance of the said contradictions. She further indicated that the 1st Respondent failed to recognize the proprietary rights of the Late Kiteng’e Kituma yet many of the witnesses who had testied conceded that he had lived on the property for many years. 5. The Ex-parte Applicant averred that it is in the interest of justice that the 1st Respondent’s decision be quashed and an order of prohibition be issued against the 2nd Respondent from implementing the 1st Respondent’s decision. 6. Opposing the application, the 1st Respondent led a replying adavit sworn by Jane N. Katuse on 1st December, 2022. She averred that the Appeal Case No. 235 of 2015 was led by the Ex-parte Applicant who was claiming that the original Plot No. 1038 was owned by Iseu and a portion of it was sold to the Ex-parte Applicant’s husband Iseu’s sons who are Maweu Iseu and Mbwii Iseu. She elaborated that whereas the Ex-parte Applicant’s husband purchased the upper side of the land, the Respondent purchased the lower side. 7. The 1st Respondent further contended that the Respondent’s witness testied that his father purchased a portion of the land in the year 1958 and that the Respondent has continued to pay for the rest of it. That the Appellant failed to honour her promise to pay for the land and consequently, an agreement was made between the Respondent and the family of Iseu and the Respondent is still paying the purchase price. The 1st Respondent stated that during cross-examination, the Appellant agreed that her husband did not buy the land but she had agreed to pay the family of Iseu the agreed upon price after the conclusion of the appeal case. 8. The 1st Respondent contended that during the appeal proceedings, both parties and their witnesses were present and that they were given a fair hearing. The deponent insisted that both parties were allowed to cross-examine and that no new parties were introduced in the Minister’s appeal case. 9. The 1st Respondent pointed out that the contradictions highlighted in her decision had been explained in that the Appellant stated that her husband did not buy the entire land and that she had agreed to pay the purchase price after conclusion of the appeal. The 1st Respondent added that the Appellant’s averments were contrary to her earlier averments that her husband purchased the land. The deponent averred that due consideration of relevant facts was put into account and as a result, the Appeal case was dismissed with orders that the objection court’s decision be implemented as is. She added that she https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18699/eng@2025-07-31 2

page 2 of 6

exercised her discretion rightfully by awarding the Appellant that portion of land that she was already occupying for many years. 10. The Interested Party led a replying adavit sworn by himself on 20th February, 2025. He averred that the application is based on lies because the Ex-parte Applicant states that the Interested Party sold a parcel of land to her yet there is no single sale agreement to support the said allegations. That whereas the Ex-parte Applicant avers that her husband bought part of the land yet her husband, Kiteng’e Katuma was a witness to the subject land from the vendor’s side. 11. The Interested Party was adamant of the fact that the Ex-parte Applicant’s objection was dismissed by both the land adjudication ocer as well as the Minister’s appeal. The Interested Party urged the court to dismiss the application with costs. 12. The application was canvassed by way of written submissions. 13. In the Ex-parte Applicant’s submissions dated 16th January, 2025, Counsel argued that during the proceedings in the Minister’s Appeal No.235 of 2015, the Appellant was not given a fair hearing because the Respondent introduced new parties who were totally dierent from the parties cited in the Objection case. Counsel submitted that this amounted to a violation of the Ex-parte Applicant’s constitutional rights. 14. Counsel reiterated that the 1st Respondent did not make an independent decision over the parcel of land as in her ruling, she did not point out the contradictions which she indicated had marred the Exparte Applicant’s case. Counsel was of the view that the 1st Respondent had not laid a basis of arming the decision of the objection court. 15. Counsel further contended that the 2nd Respondent introduced strangers as the alleged beneciaries of land Parcel No. 1038 during subdivision which was contrary to the Objection Court’s decision on the demarcation of the land. It was contended that the 2nd Respondent failed to implement the Objection Court’s decision. 16. Counsel submitted that the 1st Respondent took into account irrelevant considerations and abused her discretion by allocating the Ex-parte Applicant a land portion that is less than what she currently occupies. Counsel urged the court to grant the orders sought herein. 17. The Interested Party led his submissions on 3rd March, 2025. On his behalf, Counsel reiterated the contents of the Interested Party’s replying adavit. It was his submission that the Ex-parte Applicant did not prove her allegations of ownership of the land in dispute with the required evidence. Counsel urged the court to dismiss the case with costs. 18. There were no submissions on the record for the Respondents. 19. The only issues for determination are whether the Ex-parte Applicant has demonstrated with precision that she is entitled to the judicial orders of certiorari and prohibition as sought. 20. Being a quasi-judicial tribunal, the Minister’s Appeal was conditioned upon the requirements of Section 4 of the Fair Administrative Action Act, 2015 which provides in part as follows: 1. Every person has the right to administrative action which is expeditious, ecient, lawful, reasonable and procedurally fair. 2. Every person has the right to be given written reasons for any administrative action that is taken against him. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18699/eng@2025-07-31 3

page 3 of 6

3. 4. Where an administrative action is likely to adversely aect the rights or fundamental freedoms of any person, the administrator shall give the person aected by the decision– a. Prior and adequate notice of the nature and reasons for the proposed administrative action; b. An opportunity to be heard and to make representations in that regard; c. Notice of a right to a review or internal appeal against an administrative decision, where applicable; d. A statement of reasons pursuant to section 6; e. Notice of the right to legal representation, where applicable; f. Notice of the right to cross-examine or where applicable; or g. Information, materials and evidence to be relied upon in making the decision or taking the administrative action. The administrator shall accord the person against whom administrative action is taken an opportunity to– a. attend proceedings, in person or in the company of an expert of his choice; b. be heard; c. cross-examine persons who give adverse evidence against him; and d. request for an adjournment of the proceedings, where necessary to ensure a fair hearing. 21. The main contention by the Ex-parte Applicant is she was not granted a fair hearing. It was further contended that in making her decision, the 1st Respondent did not point out the instances of contradictions which were noted in the Appellant’s evidence and thus, a basis for her nding was not established. 22. The question that comes to mind is what entails a fair hearing? Black’s Law Dictionary 9th Edition page 789 denes a fair hearing as follows:“ A judicial or administrative hearing conducted in accordance with due process.” 23. The court in the case of Richard Bwogo Birir v Narok County Government & 2 others [2014] eKLR, adopted the following interpretation for what entails due process: “ Due process of law or simply, “due process” entails according the concerned person proceedings in which rules and principles for the protection and enforcement of private rights are upheld by the decision maker or relevant authority. At the core of due process is according the concerned person a reasonable notice with sucient particulars to prepare for a fair hearing, the second crucial element of due process (see denition and explanation in Black’s Law Dictionary, 9th Edition). Thus the court holds that due process will not be said to exist in absence of a reasonable notice with sucient particulars to prepare for a fair hearing.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18699/eng@2025-07-31 4

page 4 of 6

24. From the evidence presented, exhibit “SMK1” shows that the Ex-parte Applicant was present for the hearing of her Minister’s Appeal Case No. 235 of 2015. It is also evident that the Ex-parte Applicant called two witnesses in support of her case. The proceedings also show that the both parties were equally granted the opportunity to cross-examine their respective witnesses. 25. The Ex-parte Applicant did not raise any objection in respect of the witnesses that were availed by the Interested Party and the proceedings do not support her claim that new parties were introduced at the hearing of the Appeal. 26. Meanwhile, the contradictions indicated in the Ex-parte Applicant’s evidence before the 1st Respondent were fully explained in the decision that whereas she purported that her husband had bought the land, she testied that she had agreed to pay the agreed purchase price after the appeal was concluded. 27. As Grace. W. Ngenye J. (as she then was) observed in Republic v Public Service Commission of Kenya & 4 others [2014] eKLR: “ As “audi alteram partem” rule is concerned with the manner a decision is taken as opposed to whether the decision is correct, it cannot be underrated that whoever is accused of an illegality must be given an opportunity to defend himself/herself before a nal decision is taken. But another question arises; what is the threshold of audi alteram partem rule? In Simon Gakuo -vs- Kenyatta University And 2 Others Misc. Civil Application No. 34 OF 2009 (UR), the court said:“The audi alteram partem rule should not be interpreted to mean a full adversarial hearing or anything close to it as per the courtroom situations and as per Section 77 of the Constitution. Interpreting the demands of natural justice as requiring an adversarial hearing or anything similar is a serious misdirection in law. There are no rigid or universal rules as to what is needed in order to be procedurally fair. What is needed is what the court considers sucient in the context of each situation with its own unique facts with the needs of good administration in view. I urge practitioners of law not to rigidly import the hearing requirements in court room situation etc.” (See also Odunga J. in Peris Wambogo Nyaga V. Kenyatta University [2014] eKLR)” 28. On whether the 1st Respondent acted ultra vires, the Court in Okoiti & 3 others v Anne Waiguru, the Cabinet Secretary, Devolution and Planning & 5 others [2021] KEELRC 2306 (KLR) had the occasion to express itself on what amounts to an ultra vires act. The three-judge bench stated as follows: “ An act is ultra vires when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles renders the decision made laced with illegality. See Republic v Secretary of the Firearms Licensing Board & 2 others ex-parte: Senator Johnson Muthama [2018] eKLR. In the case of Pastoli v Kabale District Local Government Council & others, (2008) 2 EA 300 the court held that; “In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18699/eng@2025-07-31 5

page 5 of 6

29. It is not in doubt that the 1st Respondent had the jurisdiction to hear and determine the Appeal Case No. 235 of 2015 in accordance with Section 29 of the Land Adjudication Act. That being said, it is observable from a perusal of the impugned decision dated 19th May, 2022 and the proceedings therein that the Ex-parte Applicant was duly accorded the opportunity to prove her case with the aid of witnesses. The Respondents therefore acted within the connes of the law by following due process. 30. In Municipal Council of Mombasa v Republic & another [2002] eKLR, the Court held as follows: “ Judicial review is concerned with the decision-making process, not with merits of the decision itself... The court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who made the decision have the power, i.e. the jurisdiction to make it? Were the persons aected by the decision heard before it was made? In making the decision, did the decision-maker take into account relevant matters or did he take into account irrelevant matters? These are the kind of questions a court hearing a matter by way of judicial review is concerned with, and such court is not entitled to act as a court of appeal over the decider; acting as an appeal court over the decider would involve going into the merits of the decision itself - such as whether there was or there was not sucient evidence to support the decision – and that, as we have said, is not the province of judicial review.” 31. After a scrutiny of the 1st Respondent’s decision, it is clear that due process was accorded to both the Exparte Applicant and the Interested Party. There is no proof of illegality in the proceedings or that the 1st Respondent relied on irrelevant considerations. The instant application constitutes an appeal on the merits of the 1st Respondent’s decision and these are not the proper proceedings for such a challenge. 32. In the end, I nd that the application is devoid of merit. It is dismissed with costs. JUDGMENT DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 31ST DAY OF JULY, 2025. .............................................. HON. E. O. OBAGA JUDGE in the presence of: Ms. Kyalo for Exparte Applicant. Court assistant – Steve Musyoki https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18699/eng@2025-07-31 6

page 6 of 6